Shoaf v. Livengood
| Decision Date | 01 June 1909 |
| Docket Number | 21,313 |
| Parties | Shoaf, Guardian, v. Livengood |
| Court | Indiana Supreme Court |
Rehearing Denied October 8, 1909.
From Montgomery Circuit Court; Jere West, Judge.
Action by David Shoaf, as guardian of Loren Livengood, an infant against George Livengood. From a judgment for defendant plaintiff appeals.
Affirmed.
Clodfelter & Hesler, for appellant.
W. T. Whittington and R. H. Williams, for appellee.
Action by appellant, David Shoaf, as guardian of Loren Livengood, an infant, to obtain through a writ of habeas corpus the custody and possession of said child. In brief, the following are the facts alleged in the petition to secure the writ: Appellant is the child's grandfather on the maternal side. The child is six years old. Since March 29, 1907, appellant has been the duly appointed and qualified guardian of the estate of said infant. The father and mother of the latter are dead. Appellant avers in his petition that, as such guardian, he is entitled to have the possession, care, custody and management of his said ward; that appellee is wrongfully in possession of the child, and wrongfully and unlawfully detains him at his home in the town of Waynetown, Montgomery county, Indiana, and unlawfully deprives appellant of the custody thereof, although he has demanded of said appellee that he surrender the possession and control of said child; that he is prepared to furnish his said ward a good home, and to look after the proper education and management thereof. On the filing of the petition, the lower court ordered that a writ of habeas corpus be issued, which was accordingly done. It will be noted that the petition for the writ proceeds alone on the grounds that because appellant is the guardian of the estate of the child, its parents are dead, therefore, under the provisions of § 3065 Burns 1908, § 2518 R. S. 1881, he, as a matter of right, is entitled to have the custody, care and education thereof, without regard to the question of his fitness, or whether the welfare of the child will be promoted or subserved thereby. This appears to be the view entertained by his counsel. Section 3065, supra, reads as follows: "Every guardian so appointed shall have the custody and tuition of such minor, and the management of such minor's estate during minority, unless sooner removed or discharged from such trust: Provided, that the father of such minor (or if there be no father, the mother, if suitable persons respectively) shall have the custody of the person and the control of the education of such minor."
Appellee filed a return in two paragraphs to the writ, the first of which was the general denial. The second sets out substantially the following facts: Said child, Loren Livengood, was born on January 11, 1902. His parents, Arthur Livengood and Ella Livengood, are both deceased. The defendant, George Livengood, is the paternal grandfather of the child. The petitioner, David Shoaf, is the great-grandfather on the maternal side. The child's mother, Ella Livengood, died on November --, 1905, leaving surviving her her husband, Arthur Livengood. Shortly after the death of the mother the child was placed in the home of the defendant by his father, and became and was a member of defendant's family from said time until June, 1907. In the latter month the father married and established a home of his own, and took said child to his home and kept him until a short time prior to December 3, 1907. Arthur Livengood died on December 3, 1907, and prior to his death, when he knew that he was fatally afflicted, it was agreed between him and the defendant, George Livengood, that the latter was to take said child into his home, and, at his own expense, educate, maintain, board and clothe him. The father and defendant both expressly agreed to such arrangement, and immediately upon the death of the father the defendant took said Loren into his own home, and has ever since said time been carrying out such arrangement, and in pursuance thereof he has furnished said child a home, has clothed, boarded, and is proceeding to educate him in accordance with said agreement, wholly at his own expense. At all times he has complied with and carried out all the terms and conditions of said agreement. He and his wife under said agreement have kept said child in their home as a member of their own household, and they have become very much attached to the child, and love him as though he were their own child. By reason of these close associations, the child has learned to love both the defendant and his wife as though they were his parents. They have had the care and custody of the child until his affections for the defendant and his wife have become so firmly fixed that to separate them would serve to mar and endanger the future happiness and welfare of the child. The defendant is amply able to, and will, care for, support and educate the child, give him a good home, surround him with the necessary comforts of life, and treat him as a member of his own household. if he is allowed to retain the custody thereof.
It is alleged that, at the time of the appointment of plaintiff as guardian of the child, Arthur Livengood, then in life, was not notified, and had no knowledge whatever, of the proceedings which plaintiff instituted to have himself appointed as guardian; that at said time the child and his father were both bona fide residents of Montgomery county, Indiana, and were not residents of Fountain county, Indiana, in which county the appointment of guardian was made by the proper authority; that the guardian, David Shoaf, is about eighty years old; that he has no home of his own, but makes his home among his children and relatives; that the wife of said David died many years ago; that he is old, infirm, uneducated, illiterate and unable properly to care for, support and educate the child; that there is no mutual love and affection between said guardian and ward, and that said guardian is not a proper person to have the care and custody of said Loren; that the latter desires to remain in the home and under the custody of the defendant, and does not desire to be placed under the control of his said guardian, David Shoaf; that the defendant does not restrain said child of its liberty, but simply retains the custody thereof, and looks after and cares for it as a member of his own household; that he is a suitable and proper person to have the care and custody of the child, and that he has a good home, and is amply able and willing to care for, clothe and educate said infant. Wherefore he asks that he be permitted to retain the custody of the child, and that he have judgment awarded him accordingly. This return was duly verified on June 15, 1908.
To this return plaintiff filed exceptions, wherein he states that he excepts to each paragraph of the return, and for cause of exception says that each paragraph of the return fails to state facts sufficient to constitute cause for the further detention of the infant by the defendant; that each paragraph of the answer is wholly insufficient to deprive the plaintiff as guardian of the custody and possession of the child; that the pretended claim, under and by virtue of which the defendant asserts his right of further detention, is groundless and without warrant of law; that such answer and return do not state facts sufficient to constitute a cause of defense to plaintiff's petition; and that neither paragraph of return states facts sufficient to constitute a cause of defense to plaintiff's petition. The court overruled the exceptions, to which ruling plaintiff excepted, and then replied by the general denial. Upon the issues as joined there was a trial by the court, and upon the evidence introduced the court found that the plaintiff take nothing by reason of this action, and that it was for the best interest of said Loren Livengood to remain in the home of the defendant, and that the facts set forth in the return of the defendant are true. Thereupon the court entered its judgment, ordering and decreeing that the plaintiff take nothing by reason of his action, and that it is for the best interest of said Loren Livengood to remain in the home of the defendant, and that the defendant recover costs. The plaintiff then moved that the court grant a new trial, setting out his reasons therefor. This motion was overruled, to which he excepted. The reasons for a new trial depend upon the evidence, and as the latter is not in the record, the motion for a new trial presents no question for our consideration. The sole question for reversal, therefore, arises upon the sufficiency of appellant's exceptions to the return.
Counsel for appellant insist that the exceptions to appellee's return to the writ should have been sustained, because the petition discloses that appellant is the guardian of the infant child. Therefore they advance the argument that by reason of the mandatory provisions of § 3065 Burns 1908 § 2518 R. S. 1881, the trial court was divested of all discretion in the matter, and should have awarded the custody of the child to appellant, its guardian. Counsel further insist that this must be true, for the reason that § 3065, supra, is mandatory, and stands "paramount and supremely higher than the lower court," regardless of any facts alleged in the return to establish the unfitness of the guardian to have the custody, care and education of his ward, or that such custody and care would not conduce to the best interest and welfare of the child. Counsel argue that if appellant is unfit to have the custody of his ward on account of immorality on his part, or by reason of the unfitness imputed to him in the return, then appell...
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